Case Number: 160450

Whether the Hospital was justified, in refusing the applicant's request for various statements of reasons and access to records relating to his discharge from the Hospital, on the basis of sections 15(1)(g) and 32(1)(b) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant was an in-patient at the Hospital in April 2016 when a decision was made to discharge him. He objected to this and the Gardaí were called, which culminated in him leaving the Hospital.

On 6 July 2016 the applicant made a request to the Hospital seeking the following:

1. The reason(s) behind and, the name of the person(s) that made the decision to call the Gardaí to have him removed from the Hospital.
2. The reason(s) behind and, the name of the person(s) that made the order to call the Gardaí to have him removed from the Hospital.
3. The reason(s) behind and, the name of the person that made the telephone call to the Gardaí to have him removed from the Hospital.
4. The reason(s) behind and, the name of the person(s) that made the decision(s) to discharge him without putting an appropriate care plan in place.
5. The reason(s) behind the Hospital's CEO ignoring his solicitor's letter dated 18 April 2016, requesting that an appropriate care plan be put in place.

He also sought access to all notes, records, details of internal and external telephone calls, documents, communications, letters, emails, circulars, forms, memos and any other documentation arising from the decisions/actions identified above.

As the Hospital had not replied to his request, the applicant sought an internal review on 8 August 2016, on the basis of a deemed refusal. On 31 August 2016, the Hospital refused his request on the basis of sections 15(1)(g) (frivolous or vexatious request) and 32(1)(b) (law enforcement and public safety) of the FOI Act. On 3 October 2016, the applicant applied to this Office for a review of the Hospital's decision.

In conducting this review I have had regard to correspondence between the applicant and the Hospital in relation to his request and to correspondence between this Office and both the applicant and the Hospital on the matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in refusing the applicant's request for a statement of reasons and access to records relating to his discharge from hospital on the basis his request was frivolous or vexatious or formed part of a pattern of manifestly unreasonable requests.

Preliminary Matters

It is relevant to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does this Office's remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. If the applicant is dissatisfied with the Hospital's response to his complaint concerning his dealings with it, he may wish to contact the Office of the Ombudsman on that matter.

Analysis and Findings

Section 15(1)(g)
Section 15(1)(g) provides that an FOI body may refuse a request if it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester.

This Office considers that a request may be regarded as frivolous or vexatious where it has either been made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. The Commissioner has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests. The factors include:

• the number of requests made - are they considered excessive by reasonable standards?
• the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
• the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
• the intent of the requester - is the requester's aim to harass the public body?

In its internal review decision, the Hospital stated that the records requested by the applicant either did not exist or were being sought because he was "dissatisfied with clinical decisions" made in relation to his care and subsequent discharge. It also stated that the applicant's requests were "designed to disrupt" the work of the Hospital, and to "intimidate staff".

In response to queries from Ms Sandra Murdiff of this Office, the Hospital stated that it had refused the applicant's request in this case on the basis that it is frivolous, vexatious or formed part of a pattern of manifestly unreasonable requests. It maintained its position that the applicant was "dissatisfied with the clinical decision to discharge him" without, "as he sees it, his surgical needs being addressed".

It also contended that the applicant was fully aware of the reasons why the Gardaí were called to have him removed from the Hospital. It also maintained its position that it had responded to his solicitor's letter, and that a care plan was in place.

The Commissioner is of the view that the refusal of requests under section 15(1)(g) is not something which should be undertaken lightly. I note that Ms Murdiff asked the Hospital to supply details of the information relied upon by it in coming to the decision to refuse his request under section 15(1)(g) of the Act. The Hospital almost exclusively relied on its argument that the applicant already knew the reasons for the acts or decisions of the Hospital as set out in his request. Despite stating that his requests formed a pattern of behaviour which he "had shown in the past" of "dissatisfaction with clinical decision(s) followed by numerous requests and complaints made to the Hospital", it has not provided any evidence to this Office this is the case.
It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Hospital to satisfy this Office that its decision to refuse the applicant's request was justified.

Having carefully reviewed the Hospital's decision and submission to this Office, I do not consider that there is sufficient evidence before me to support a view that the applicant's request has been made for its nuisance value or intended to achieve some objective unrelated to the access process. Accordingly, I do not consider that the Hospital has justified its decision to refuse the applicant's request on the basis of section 15(1)(g) of the Act. I find accordingly.

Section 10
Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:
"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

"Benefit" is defined at section 10(13) of the Act as including

"(a) any advantage to the person,

(b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating the person, and

(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person."

This Office has previously set out its approach to, and interpretation of, the equivalent provision of the FOI Acts 1997 & 2003 (Section 18). While not identical, section 10 is quite similar to that equivalent provision. Insofar as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014 including, in particular, the following principles;

There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the body. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.
The requirement on the public body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What section 10 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did.

The applicant, requested statements of reasons for acts or decisions of individual staff members in the Hospital. However, where section 10 applies, it is the act of the public body, rather than particular individuals involved in the act, which is relevant.

As section 10 requires the body to give reasons for the act or decision, it follows, therefore, that an application for a statement of reasons must identify the act or decision for which the statement is sought. The application for a statement of reasons in this case took the form of five separate parts. Having carefully considered each of the constituent parts, I am satisfied that parts 1, 2 and 3 can be taken together and viewed as a request for a statement of reasons as to why the Hospital made the decision to call the Gardaí to have the applicant removed from the Hospital.

The Hospital stated in its submission to this Office that a decision had been made to discharge the applicant as his treating doctors were of the view that his condition was no longer acute and could be managed on an out-patient basis. It provided a copy of a letter from the Hospital's Medical Director to the applicant, given to him on the day he was discharged (18 April 2016), which set this out. It contended that the applicant did not agree with the decision to discharge him and refused to leave the Hospital. The Hospital stated that it was under significant pressure for access to acute beds, and that it had to take appropriate action to free up these beds. It contended that in the circumstances of this case, this meant calling the Gardaí to ensure the applicant left the Hospital. The Hospital maintained its position that the applicant was fully aware of these reasons at the time of his discharge.

Taking the above into account, it appears to me that the decision to call the Gardaí did not confer or withhold a benefit. In my view, the benefit or advantage to the applicant in this case would have been remaining in the Hospital as an in-patient. The Hospital has stated that it required the bed, and clearly, a decision to discharge the applicant had already been taken. In my view, the act or decision of calling the Gardaí merely expedited matters. Accordingly, I do not consider that act or decision of calling the Gardaí is one which section 10 applies. I find accordingly.

It seems to me that, in effect, the act or decision which withheld the benefit was the decision to discharge him from Hospital on 18 April 2016. While the applicant has not requested a statement of reasons for the decision to discharge him, in my view the Medical Director's letter of 18 April clearly sets out the reasons behind this.

The remaining two parts of the applicant's request relate to, as he sees it, the decision to discharge him without putting in place an appropriate care plan and the Hospital CEO's failure to reply to his solicitor's letter requesting such a care plan.

In essence, the Hospital disputes the applicant's view that there was no care plan in place. It referred to the Medical Director's letter which stated that the applicant's condition was stable and that the Hospital was satisfied that his dietary needs would be provided for when he was discharged. The letter also set out the steps which could be taken if his symptoms recurred. The Hospital also stated that it responded to his solicitor's letter, and provided a copy of a letter from Ms Ann Dalton, Chief Operations Officer/Deputy CEO, to the applicant's solicitor, dated 18 April 2016 in this regard.

While the applicant may not be satisfied with the Hospital's response to his solicitor, or with the care plan, it is not for this Office to make any finding as to whether or not they were adequate. Accordingly, I am of the view that there is no act or decision of a public body conferring or withholding a benefit which requires a statement of reasons in relation to the final two parts of the applicant's request. I find accordingly.

Records

The applicant also sought access to all notes, records, details of internal and external telephone calls, documents, communications, letters, emails, circulars, forms, memos and any other documentation arising from the decisions/actions identified above. I note that the Hospital cited section 32(1)(b) of the Act - which provides that an FOI body may refuse to grant a request if access to the record concerned could reasonably be expected to endanger the life or safety of any person - in relation to this part of his request.

Having regard to the Hospital's decision in this case, it seems clear to me that it did not consider this part of his request in terms of relevant records. Furthermore, I am not aware that the Hospital actually identified any records that it holds relating to certain parts of the applicant's request. Where a body cannot locate records, it is entitled to refuse the request on the ground that the records sought cannot be found or do not exist, provided it has taken all reasonable steps to ascertain the whereabouts of the records (section 15(1)(a) refers).

Accordingly, I am satisfied that the appropriate course of action in this case is to annul the Hospital's decision and to direct it to undertake a fresh decision making process in relation to the records sought by the applicant. The effect of this finding is that the Hospital should consider that part of the request relating to records afresh and make a new, first instance, decision. The applicant would have a right to internal review and to a review by this Office if he is not satisfied with that decision. In making its decision, the Hospital must comply with the statutory requirements of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Hospital's decision. I find that it was not justified in refusing the applicant's request on the basis of section 15(1)(g) of the Act. I also find that there was no obligation to provide a statement of reasons under section 10 of the Act. Finally, I direct the Hospital to reconsider the applicant's request for access to records and to make a new decision on this part of his request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator